April 05, 2013

Justice Dept. Fights Former Prosecutor's Privacy Suit

U.S. Justice Department lawyers today asked a federal trial judge in Washington to shut down a former federal prosecutor's suit that alleges the government leaked information to the press about an internal attorney ethics investigation.

DOJ lawyers argue in Richard Convertino's suit in Washington federal district court that the former Detroit prosecutor can't show how he's suffered any financial harm from the alleged disclosure. There's no contention, for instance, of damages as a result of lost income, the government said in a new court filing.

Convertino, an assistant U.S. attorney from 1995 to 2006, is still trying to find out the source of the release of information about an Office of Professional Responsibility investigation. OPR was looking at whether Convertino knowingly kept information secret from the defense lawyers in a terrorism-related case in Michigan that fell apart amid allegations of prosecutorial misconduct.

The Detroit Free Press in 2004 published a front-page story titled "Terror Case Prosecutor is Probed on Conduct." The reporter, David Aschenfelter, attributed certain details in the article to "department officials" who spoke on the condition of anonymity.

In federal court proceedings in Michigan, Convertino has managed to get his hands on reporter notes and other information. Convertino's lawyers at Kohn, Kohn & Colapinto said the documents provide "substantial new information regarding the identify of the Department of Justice" official responsible for the leak.

DOJ lawyers contend it doesn't matter whether Convertino ultimately unmasks the person or people who divulged confidential information about the misconduct investigation. Convertino, according to the government, must show "actual damage" under the Privacy Act.

"[N]o matter what happens in those discovery proceedings, such evidence would be irrelevant to his ability to show that he has suffered 'actual damages,'" DOJ Civil Division lawyer Scott Risner said in court papers filed Friday.

Risner said Convertino "cannot establish the required damages element by claiming injuries for which he suffered no pecuniary loss. His claims of having suffered anxiety, embarrassment, or loss of reputation thus do not provide the basis for a claim under the Privacy Act."

Convertino said in a deposition that "there's a tremendous loss of income and potential income that I'll never regain." DOJ lawyers argue that "Convertino's non-specific and vage assertion of pecuniary damage" isn't enough to keep alive his suit.

Last year, the U.S. Court of Appeals for the D.C. Circuit revived Convertino's privacy suit, giving him more time to try to squeeze information from the Free Press to help him identify the leaker.

The ruling reversed a federal trial judge, Royce Lamberth, who had earlier terminated the case based on the continued anonymity of the source of the leak.